FBI director described the court battle as ‘not trying to set a precedent’ as the value of what it seeks is ‘increasingly obsolete’ – but among 12 requests cited by Apple counsel are a request about an iPhone 6 Plus.
Photograph: Yuya Shino/Reuters

Apple has challenged the White House’s claims that its use of a controversial law to access the iPhone of San Bernardino shooter Syed Farook is limited in scope.

The Department of Justice has sought access to iPhones, including the company’s very latest models, under the All Writs Act at least 11 times since September, according to a letter from Apple counsel Marc Zwillinger to federal magistrate judge James Orenstein dated Monday.

Apple's encryption battle with the FBI has implications well past the iPhone

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The 227-year-old All Writs Act compels third parties to assist authorities in their investigation and is usually a measure of last resort. Apple contends the FBI is misusing the legislation.

Zwillinger’s letter appears to contradict the position articulated by White House spokesman Josh Earnest last week that the order sought by the DoJ in the case of Farook is limited in scope. “They are not asking Apple to redesign its product or to create a new backdoor to one of their products,” Earnest said. “They’re simply asking for something that would have an impact on this one device.”

FBI director James Comey said the court battle “isn’t about trying to set a precedent” in an editorial posted to influential legal blog Lawfare on Sunday. “The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve,” Comey wrote.

But some of the technology listed in Zwillinger’s letter is anything but obsolete: the chart supplied to Orenstein lists 12 iPhones running operating systems up to iOS 9.1 and including Apple’s recent iPhone 6 Plus. And the DoJ’s continued use of the All Writs Act, rather than the boilerplate warrant Apple provides for phones used in at least eight of the cases, seems to suggest an effort to set precedent.

Apple said it objected in nine cases; in one it had not been provided a copy of the underlying motion, and in the other the agent in question said she would use a warrant, Apple’s preferred legal avenue for unlocking phones with operating systems older than iOS 8.

Robert Capers, US attorney for the eastern district of New York, said Apple had been inconsistent in its opposition to the All Writs Act. Capers called Apple’s insistence on search warrants rather than ex parte applications hypocritical: “In one case (in the southern district of California), Apple indicated that it would assist the government in accessing a passcode-locked device once the government provided it with a new copy of the order’s language in a different format (embedded within the warrant rather than alongside it).” Capers also identified a 12th All Writs case.

“Apple’s position has been inconsistent at best,” he wrote.

Apple has often complied with past All Writs orders and has only begun seeking to fight those orders in court recently, Capers said, and the company’s objections to those orders did not extend to legal filings. “In most of the cases, rather than challenge the orders in court, Apple simply deferred complying with them,” he said in his own letter to Orenstein.

“The overwhelming weight of law and precedent continues to support the government’s application in this case,” Capers wrote.

Orenstein ruled in favor of Apple last year. “[Apple] is a private-sector company that is free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement,” he wrote on 8 October.

“As recently as yesterday, Apple was served with an order by the United States attorney’s office for the central district of California,” wrote Zwillinger on 17 February, a reference to the government’s ex parte application to force Apple to crack open Farook’s iPhone 5C, filed the previous day, which Zwillinger attached to his letter to Orenstein.

The case before Orenstein last year asked Apple to assist in decrypting an iPhone running iOS 7, which the company said it would not do. Orenstein supported their decision: “There is nothing in the record to suggest that Apple has or wants the ability to defeat customer-installed security codes to access the encrypted data that its customers store on Apple devices after purchasing them.”

Zwillinger wrote: “The attached order directs Apple to perform even more burdensome and involved engineering than that sought in the case currently before this court.”